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FISA Court must be accountable, even broadly, to the public, Reporters Committee brief argues

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The Reporters Committee for Freedom of the Press, joined by 14 media organizations, has filed a friend-of-the-court brief arguing that…

Posted on July 15, 2013

The Reporters Committee for Freedom of the Press, joined by 14 media organizations, has filed a friend-of-the-court brief arguing that Google and Microsoft should be allowed to broadly discuss their compelled participation in government surveillance activities, and that the court should release those decisions that interpret the FISA laws and create binding precedent, as the ACLU and the Media Freedom and Information Access Clinic at Yale Law School have argued in a third case.

The brief, filed with the highly secretive Foreign Intelligence Surveillance Court (often called the FISA Court), asserts the public’s First Amendment right to know about the court’s core activities, as well as the right to receive information from willing speakers – in this case Google and Microsoft.

“They are speakers with significant First Amendment interests who wish to convey to the public generalized data about government surveillance programs in which they are required to play a role based on statute and judicial orders,” the brief argued in support of the two tech giants. “They have submitted to this Court that disclosure of the information they seek to share with the public is not barred by law and will better explain the nature of their participation in these programs and correct popular misconceptions about the operation of key anti-terrorism initiatives undertaken by the government.”

“Where Google and Microsoft have an interest of constitutional dimension in communicating with the public, the public has a corresponding constitutional interest in receiving the communications in order to fully realize its own speech and political freedoms,” the brief continued.

“As the ACLU and the Yale clinic explain, the judiciary, as a separate and co-equal branch of government, is invested in the recognition of public access rights to judicial proceedings for its own institutional reasons as well,” the Reporters Committee brief argued. “While these institutional interests are prevalent throughout the judiciary, from trial courts all the way to the U.S. Supreme Court, they may be even more pronounced in the FISA Court ‘than in other tribunals’ for reasons ranging from the secret nature of its adjudications to the lack of any adversarial process.”

This is the first time the Reporters Committee has filed with the FISA Court and its first amicus brief in support of the First Amendment interests of technology companies such as Google and Microsoft. Joining the Reporters Committee on its brief were ABC, Inc.; The Associated Press; Bloomberg L.P.; Dow Jones & Company, Inc.; Gannett Co., Inc.; Los Angeles Times; The McClatchy Company; National Public Radio, Inc.; The New York Times Company; The New Yorker; The Newsweek/Daily Beast Company LLC; Reuters America LLC; Tribune Company; and The Washington Post.

“We’re talking about the release of aggregate data and judicial opinions interpreting surveillance statutes generally. Nothing here would violate any individual’s privacy or the necessary secrecy of FISA Court activities,” said Reporters Committee for Freedom of the Press Executive Director Bruce D. Brown. “Further, as we see the president and other public officials discussing these very points in open forums, the logic behind continuing to stifle a broad discussion by affected companies seems weak at best.”

About the Reporters Committee

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

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